The Special Joint Committee on Child Custody and
Access has summarized its recommendations with
references to the page in its report (found in
brackets at the end of each recommendation) where
each recommendation is discussed. We are reprinting
the Summary below. Check out the Government's
response to the committee's full report,
For the Sake of the Children to access a fully
hyperlinked Table of Contents and to read the
discussion leading to each recommendation.
1. This Committee recommends that the Divorce Act
be amended to include a Preamble alluding to the
relevant principles of the United Nations Convention
on the Rights of the Child. (page 23) *
2. This Committee recognizes that parents'
relationships with their children do not end upon
separation or divorce and therefore recommends that
the Divorce Act be amended to add a Preamble
containing the principle that divorced parents and
their children are entitled to a close and
continuous relationship with one another. (page 23)
3. This Committee recommends that it is in the
best interests of children that
- they have the opportunity to be heard when
parenting decisions affecting them are being
made; - those whose parents divorce have the
opportunity to express their views to a skilled
professional, whose duty it would be to make
those views known to any judge, assessor or
mediator making or facilitating a shared
parenting determination; - a court have the authority to appoint an
interested third party, such as a member of the
child's extended family, to support and
represent a child experiencing difficulties
during parental separation or divorce; - the federal government work with the
provinces and territories to ensure that the
necessary structures, procedures and resources
are in place to enable such consultation to take
place, whether decisions are being made under
the Divorce Act or provincial legislation; and - we recognize that children of divorce have a
need and a right to the protection of the
courts, arising from their inherent
jurisdiction. (page 23)
4. This Committee recommends that where, in the
opinion of the court, the proper protection of the
best interests of the child requires it, judges have
the power to appoint legal counsel for the child.
Where such counsel is appointed, it must be provided
to the child. (page 23)
5. This Committee recommends that the terms
``custody and access'' no longer be used in the
Divorce Act and instead that the meaning of both
terms be incorporated and received in the new term
``shared parenting", which shall be taken to include
all the meanings, rights, obligations, and
common-law and statutory interpretations embodied
previously in the terms ``custody and access". (page
27)
6. This Committee recommends that the Divorce Act
be amended to repeal the definition of ``custody''
and to add a definition of ``shared parenting'' that
reflects the meaning ascribed to that term by this
Committee. (page 28)
7. This Committee recommends that the federal
government work with the provinces and territories
toward a corresponding change in the terminology in
provincial/territorial family law. (page 28)
8. This Committee recommends that the common law
``tender years doctrine'' be rejected as a guide to
decision making about parenting. (page 28)
9. This Committee recommends that both parents of
a child receive information and records in respect
of the child's development and social activities,
such as school records, medical records and other
relevant information. The obligation to provide such
information should extend to schools, doctors,
hospitals and others generating such information or
records, as well as to both parents, unless ordered
otherwise by a court. (page 28)
10. This Committee recommends that all parents
seeking parenting orders, unless there is agreement
between them on the terms of such an order, be
required to participate in an education program to
help them become aware of the post-separation
reaction of parents and children, children's
developmental needs at different ages, the benefits
of co-operative parenting after divorce, parental
rights and responsibilities, and the availability
and benefits of mediation and other forms of dispute
resolution, provided such programs are available. A
certificate of attendance at such a post-separation
education program would be required before the
parents would be able to proceed with their
application for a parenting order. Parents should
not be required to attend sessions together (page
30).
11. This Committee recommends that divorcing
parents be encouraged to develop, on their own or
with the help of a trained mediator or through some
form of alternative dispute resolution, a parenting
plan setting out details about each parent's
responsibilities for residence, care, decision
making and financial security for the children,
together with the dispute resolution process to be
used by the parties. Parenting plans must also
require the sharing between parents of health,
educational and other information related to the
child's development and social activities. All
parenting orders should be in the form of parenting
plans. (page 32)
12. This Committee recommends that the
relationships of grandparents, siblings and other
extended family members with children be recognized
as significant and that provisions for maintaining
and fostering such relationships, where they are in
the best interests of those children, be included in
parenting plans. (page 32)
13. This Committee recommends that the Minister
of Justice seek to amend the Divorce Act to require
that parties applying to a court for a parenting
order must file a proposed parenting plan with the
court. (page 32)
14. This Committee recommends that divorcing
parents be encouraged to attend at least one
mediation session to help them develop a parenting
plan for their children. Recognizing the impact of
family violence on children, mediation and other
non-litigation methods of decision making should be
structured to screen for and identify family
violence. Where there is a proven history of
violence by one parent toward the other or toward
the children, alternative forms of dispute
resolution should be used to develop parenting plans
only when the safety of the person who has been the
victim of violence is assured and where the risk of
violence has passed. The resulting parenting plan
must focus on parental responsibilities for the
children and contain measures to ensure safety and
security for parents and children. (page 33)
15. This Committee recommends that the Divorce
Act be amended to provide that shared parenting
determinations under sections 16 and 17 be made on
the basis of the "best interests of the child".
(page 44)
16. The Committee recommends that decision
makers, including parents and judges, consider a
list of criteria in determining the best interests
of the child, and that list shall include
16.1 The relative strength, nature and
stability of the relationship between the child
and each person entitled to or claiming a
parenting order in relation to the child;
16.2 The relative strength, nature and
stability of the relationship between the child
and other members of the child's family who
reside with the child, and persons involved in
the care and upbringing of the child;
16.3 The views of the child, where such views
can reasonably be ascertained;
16.4 The ability and willingness of each
applicant to provide the child with guidance and
education, the necessaries of life and any
special needs of the child;
16.5 The child's cultural ties and religious
affiliation;
16.6 The importance and benefit to the child
of shared parenting, ensuring both parents'
active involvement in his or her life after
separation;
16.7 The importance of relationships between
the child and the child's siblings, grandparents
and other extended family members;
16.8 The parenting plans proposed by the
parents;
16.9 The ability of the child to adjust to
the proposed parenting plans;
16.10 The willingness and ability of each of
the parties to facilitate and encourage a close
and continuing relationship between the child
and the other parent;
16.11 Any proven history of family violence
perpetrated by any party applying for a
parenting order;
16.12 There shall be no preference in favour
of either parent solely on the basis of that
parent's gender;
16.13 The willingness shown by each parent to
attend the required education session; and
16.14 Any other factor considered by the
court to be relevant to a particular shared
parenting dispute. (page 45)
17. This Committee recommends that the Divorce
Act be amended to ensure that parties to proceedings
under the Divorce Act can choose to have such
proceedings conducted in either of Canada's official
languages. (page 46)
18. Whereas the federal government is required by
statute to review the Federal Child Support
Guidelines within five years of their
implementation, this Committee recommends that the
Minister of Justice undertake as early as possible a
comprehensive review of the Guidelines to reflect
gender equality and the child's entitlement to
financial support from both parents, and to give
particular attention to the following additional
concerns raised by this Committee:
18.1 Incorporation into the Child Support
Guidelines of the new concepts and language
proposed by this Committee;
18.2 The impact of the current tax treatment
of child support on the adequacy of child
support as it is awarded under the Guidelines
and on parents' ability to meet other financial
obligations, such as to children of second or
subsequent relationships;
18.3 The desirability of considering both
parents' income, or financial capacity, in
determining child support amounts, including the
40% rule for determining whether the parenting
arrangement is ``shared parenting'';
18.4 Recognition of the expenses incurred by
support payors while caring for their children;
18.5 Recognition of the additional expenses
incurred by a parent following a relocation of
the other parent with the children;
18.6 Parental contributions to the financial
support of adult children attending
post-secondary institutions;
18.7 The ability of parties to contract out
of the Federal Child Support Guidelines; and
18.8 The impact of the Guidelines on the
income of parties receiving public assistance.
(page 51)
19. This Committee recommends that the federal
government work with the provinces and territories
toward the development of a nation-wide co-ordinated
response to failures to respect parenting orders,
involving both therapeutic and punitive elements.
Measures should include early intervention,
parenting education programs, a make-up time policy,
counselling for families experiencing parenting
disputes, mediation and, for persistent intractable
cases, punitive solutions for parents who wrongfully
disobey parenting orders. (page 55)
20. This Committee recommends that the federal
government establish a national computerized
registry of shared parenting orders. (page 55)
21. This Committee recommends that the provincial
and territorial governments consider amending their
family law to provide that maintaining and fostering
relationships with grandparents and other extended
family members is in the best interests of children
and that such relationships should not be disrupted
without a significant reason related to the
well-being of the child. (page 57)
22. This Committee recommends that the federal
government provide leadership by ensuring that
adequate resources are secured for the following
initiatives identified by this Committee as critical
to the effort to develop a more child-centred
approach to family law policies and practices:
22.1 Expansion of unified family courts
across Canada, including the dedication of ample
resources to interventions and programs aimed at
ensuring compliance with parenting orders, such
as early intervention programs, parenting
education, make-up time policies, family and
child counselling, and mediation;
22.2 Civil legal aid to ensure that parties
to contested parenting applications are not
prejudiced by the lack or inadequacy of legal
representation;
22.3 A Children's Commissioner, an officer of
Parliament reporting to Parliament, who would
superintend and promote the welfare and best
interests of children under the Divorce Act and
in other areas of federal responsibility;
22.4 The provision of legal representation
for children when appointed by a judge;
22.5 Parenting education programs;
22.6 Supervised access programs; and
22.7 Enhanced opportunities for professional
development for judges, focused on the concept
of shared parenting formulated by this
Committee, the impact of divorce on children,
and the importance of maintaining relationships
between children and their parents and extended
family members. (page 59)
23. This Committee recommends that the federal
government continue to work with the provinces and
territories to accelerate the establishment of
unified family courts, or courts of a similar
nature, in all judicial districts across Canada.
(page 63)
24. This Committee recommends that unified family
courts, in addition to their adjudicative function,
include a broad range of non-litigation support
services, which might include
24.1 family and child counselling,
24.2 public legal education,
24.3 parenting assessment and mediation
services,
24.4 an office responsible for hearing and
supporting children who are experiencing
difficulties stemming from parental separation
or divorce, and
24.5 case management services, including
monitoring the implementation and enforcement of
shared parenting orders. (page 64)
25. This Committee recommends that, as much as
possible, provincial and territorial governments,
law societies and court administrators work toward
establishing a priority for shared parenting
applications, above other family law matters in
dispute. (page 64)
26. This Committee recommends that in matters
relating to parenting under the Divorce Act, the
importance of the presence of both parties at any
proceeding be recognized and emphasized, and that
reliance on ex parte proceedings be restricted as
much as possible. (page 64)
27. This Committee recommends that court orders
respecting shared parenting be more detailed,
readable and intelligible to police officers called
upon to enforce them. (page 67)
28. This Committee recommends that provincial and
territorial governments explore a variety of
vehicles for increasing public awareness about the
impact of divorce on children and, in particular,
the aspects of parental conduct upon marriage
breakdown that are most harmful to children, and
implement such education programs as fully as
possible. To the extent practicable, the Committee
recommends that the federal government contribute to
such efforts within its own jurisdiction, including
the provision of funding. (page 68)
29. This Committee recommends that the federal
government extend financial support to programs run
by community groups for couples wanting to avoid
separation and divorce or seeking to strengthen
their marital relationship. (page 68)
30. This Committee recommends that the Divorce
Act be amended to require (a) that a parent wishing
to relocate with a child, where the distance would
necessitate the modification of agreed or
court-ordered parenting arrangements, seek judicial
permission at least 90 days before the proposed move
and (b) that the other parent be given notice at the
same time. (page 70)
31. This Committee recommends that provinces and
territories and the relevant professional
associations develop accreditation criteria for
family mediators and for social workers and
psychologists involved in shared parenting
assessments. (page 72)
32. This Committee recommends that federal,
provincial and territorial governments work together
to encourage the development of effective models for
the early identification of high-conflict families
seeking divorce. Such families should be streamed
into a specialized, expedited process and offered
services designed to improve outcomes for their
children. (page 74)
33. This Committee recommends that professionals
who meet with children experiencing parental
separation recognize that a child's wish not to have
contact with a parent could reveal a significant
problem and should result in the immediate referral
of the family for therapeutic intervention. (page
74)
34. This Committee recommends that the federal,
provincial and territorial governments work together
to ensure the availability of supervised parenting
programs to serve Canadians in every part of Canada.
(page 76)
35. This Committee recommends that the Divorce
Act be amended to make explicit provision for the
granting of supervised parenting orders where
necessary to ensure continuing contact between a
parent and a child in situations of transition, or
where there is clear evidence that the child
requires protection. (page 76)
36. This Committee recommends that the provincial
and territorial governments require child protection
agencies to provide disclosure of records of
investigations to court-appointed assessors
examining families who have been the subject of such
investigations. (page 77)
37. This Committee recommends that the attorneys
general of Canada and the provinces, along with
police forces and police organizations, ensure that
all warrants in child abduction matters provide
expressly that their application and enforcement are
national. (page 84)
38. This Committee recommends that the Attorney
General of Canada work to develop a co-ordinated
national response to the problem of child abduction
within Canada. (page 84)
39. This Committee recommends that the unilateral
removal of a child from the family home without
suitable arrangements for contact between the child
and the other parent be recognized as contrary to
the best interests of the child, except in an
emergency. (page 84)
40. This Committee recommends that a parent who
has unilaterally removed a child not be permitted to
rely on the resulting period of sole care and
control of the child, of whatever duration, as the
basis for a sole parenting order. (page 84)
41. This Committee recommends that the federal
government implement the recommendations of the
Sub-Committee on Human Rights and International
Development of the House of Commons Standing
Committee on Foreign Affairs and International Trade
entitled International Child Abduction: Issues for
Reform. (page 84)
42. This Committee recommends that the Minister
of Foreign Affairs and the Passport Office continue
to examine ways to improve the identification of
minor children in travel documents and consider
further the advisability of requiring that all
children be issued individual passports. (page 84)
43. This Committee recommends that, to deal with
intentional false accusations of abuse or neglect,
the federal government assess the adequacy of the
Criminal Code in dealing with false statements in
family law matters and develop policies to promote
action on clear cases of mischief, obstruction of
justice or perjury. (page 90)
44. This Committee recommends that the federal
government work with the provinces and territories
to encourage child welfare agencies to track
investigations of allegations of abuse made in the
context of parenting disputes, in order to provide a
statistical basis for a better understanding of this
problem. (page 93)
45. This Committee recommends that the federal
government engage in further consultation with
Aboriginal organizations and communities across
Canada about issues related to shared parenting that
are particular to those communities, with a view to
developing a clear plan of action to be implemented
in a timely way. (page 97)
46. This Committee recommends that the federal
government include as the basis for such
consultations the family law-related recommendations
of the Royal Commission on Aboriginal Peoples and
work toward their implementation as appropriate.
(page 98)
47. This Committee recommends that sexual
orientation not be considered a negative factor in
the disposition of shared parenting decisions. (page
99)
48. This Committee recommends that the Minister
of Foreign Affairs work toward the signing and
ratification as soon as possible of the 1996 Hague
Convention on Jurisdiction, Law Applicable,
Recognition, Enforcement and Cooperation in Respect
of Parental Responsibility and Measures for the
Protection of Children. (page 101)
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